information of the district attorney is not a violation of Const. U. S., Amend. 5, providing that no person shall be held to answer for an infamous crime except on presentment or indictment of a grand jury. U. S. v. J. Lindsay Wells Co., (1910) 186 Fed. 248.

In U. S. v. Schurman, (1910) 177 Fed. 581, it appeared that the defendants manufactured and sold in interstate commerce "Dutch tea rusk." The packages were marked "Genuine Dutch Tea Rusk," and stated that the contents were "made in Holland, Mich., by the Michigan Tea Rusk Company, Holland, Mich.; the word "Holland" where it first occurred in type was so large and prominent as to hold the attention and mislead purchasers into supposing that the article was a genuine importation from Holland. A hearing was had under the rules of the Department of Agriculture. in which respondents claimed that the markings were not misleading, but offered to change the labels as directed by the government, if found otherwise. It was held that since the defendant's violation of Food and Drugs Act prohibiting the branding of an article of food so as to purport to be a foreign product when it was not so was doubtful, leave would not be granted to file an information prior to notice of adverse finding by the department and an opportunity to alter the labels as directed.

Averments that a fluid was labeled "Flavor of Lemon and Citral - A Pure Flavor," and that it did not contain an appreciable quantity of lemon oil which was an essential ingredient of a pure lemon flavor, did not state facts sufficient to show a misbranding because they failed to show that the fluid was labeled a pure flavor of lemon, or that lemon oil was an essential element of a pure flavor of lemon

1909 Supp., p. 137, sec. 3.

Regulations. It is within the power of the Secretaries of the Treasury, Agriculture, and Commerce and Labor, under this section, to promulgate a rule or regulation which requires that the name of the parent substance shall follow that of the derivative on labels placed on packages containing drugs which

1909 Supp., p. 138, sec. 7.

Macaroni, to which a coal tar dye known as "Martius yellow" had been added solely as a coloring matter, was held to contain an "added poisonous ingredient which may render it injurious to health," within the fifth clause of this section, and, when shipped in interstate commerce, to be subject to condemnation and destruction under section 10 of the Act, the evidence showing that such coloring matter is a poison which will kill. U. S. v. 1,950 Boxes Macaroni, (1910) 181 Fed. 427.

Adulteration of liquors. Where there is no evidence of how the liquors were branded, and no evidence of their strength, quality, or purity," except that they were colored and slightly sweetened by burnt sugar, they cannot be held to be misbranded or adulterated.

and citral. An averment that the defendant intended that the label "Flavor of Lemon and Citral A Pure Flavor" should be understood by the public and purchasers to mean a pure flavor or extract of lemon was futile, because the accepted and usual signification of the label is that the article is not a pure flavor or extract of lemon, but that it is a flavor of lemon and citral. An averment that one who branded an article with a label whose accepted and usual signification correctly describes it intended that the public or purchasers should understand that the label had an opposite and unusual significance fails to disclose any misbranding. Nave-McCord Mercantile Co. v. U. S., (C. C. A. 1910) 182 Fed. 46.

Sufficiency of affidavits supporting information. In U. S. v. Baumert, (1910) 179 Fed. 735, it appeared that an information for violating the pure food law was sworn to on information and belief by the United States district attorney supported by certain letters. purporting, but not proved, to have been written or authorized by accused taking issue with the Agricultural Department's claim of violation; also a statement not in the form of an affidavit. by an analyst of the Agricultural Department, to which was attached a notary's certificate that it had been subscribed and sworn to, etc. The paper contained no venue, nor was there any certificate attached to it showing that the person certifying it was a notary or authorized to take and certify oaths and affirmations, and that it was taken and subscribed as required by the laws of the state, etc. It was held that the information was not sufficiently proved to justify the issuance of process.

come within the provisions of section 8; but in the absence of such a rule no offense would be committed under the Act by the omission, nor could the article for that reason alone be dealt with as misbranded. (1909) 27 Op. Atty.-Gen. 143.

The court cannot take judicial notice that whiskey cannot be colored and sweetened to some slight extent by burnt sugar without exceeding the limits of the standard prescribed by the Pure Food Act. State . Intoxicating Liquors, (1909) 106 Me. 142, 76 Atl. 267.

Whiskey. Whiskey, within the purview of this Act, is the product of sound grain, distilled at a low temperature so as to retain in the distillate the congeneric properties of the grain, which give to the liquor, when matured by aging in charred casks, its desirable potable character. Neutral spirits, which are distilled at a high temperature, may be made from different materials and do not contain such properties, and which are not rendered potable by aging, although reduced by water

to potable strength and from which most of the fusel oil has been removed, are not whiskey nor a like substance with whiskey. Woolner r. Rennick, (1908) 170 Fed. 662.

Silver coating on candy. — Since the purpose of this Act was to protect the purchaser of food products from having inferior and different articles passed off on him in place of those he desired, and to protect him from injury by prohibiting the addition to foods of substances poisonous or deleterious to health, the words “other mineral substances," under the doctrine of ejusdem generis, includes other mineral substances which are deleterious or detrimental to health of the same nature as those specifically described preceding such words, and hence does not include a thin coating of pure silver covering candy, used principally by confectioners for decorative purposes, and not deleterious or detrimental to health. French Silver Dragée Co. v. U. S., (C. C. A. 1910) 179 Fed. 824.

Horse and mule feed. Where a substance sold under the name "Corno Horse and Mule Feed" was contained in a package branded "Corno Horse and Mule Feed, Mixture of ground alfalfa, oats, corn, flax, bran, oat and hominy feeds, made by the Corno Mills Company, East St. Louis, Illinois"- followed by a guaranteed analysis, such substance being a compound and so described on the package, it was held that it was not adul

Tea Inspection Act. This Act is not intended as a substitute for the special Tea Inspection Act (Act of March 2, 1897, 29 Stat. L. 604, 3 Fed. Stat. Annot. 138), but both statutes are cumulative so far as the importation of tea is concerned. Op. Atty. Gen. 166.

(1907) 26

Labeling of deteriorated drugs. Where a drug is not sold under a name recognized in the United States pharmacopoeia, a general statement on the label that its quality has deteriorated and that it has been condemned for sale under section 1241, R. S., 7 Fed. Stat. Annot. 1017, would be a sufficient compliance with the Food and Drugs Act, and would show that it was not sold under any professional standard, and could not be deemed either adulterated or misbranded under sections 7 and 8 of that Act. Where a drug is sold under a name recognized by the United States pharmacopeia, a mere general statement of the character of the drug, showing only the fact of its deterioration, is insufficient; and in order that it may not be deemed adulterated, its actual strength, quality, or purity should be stated on the label of each bottle, box, or other container in which the goods are intended to reach the consumer. (1908) 26 Op. Atty.-Gen. 546.

Statement of inside circulars. This Act merely embraces any statement, design, or device regarding an article which appears on the outside of the package in which the article is offered for sale, whether such statement is printed on or otherwise affixed to the package, or impressed on a separate label affixed

terated because it contained a quantity of oat hulls mixed and packed therewith in ex. cess of the amount normally present in oat feed consisting of whole ground oats. U. S. r. One Car Load Corno Horse Feed, (1911) 188 Fed. 453.

Cider vinegar. Where samples of alleged pure cider vinegar showed only from 11 to .16 glycerin, it was held to be adulterated. U. S. r. One Hundred Barrels Vinegar, (1911) 188 Fed. 471.

Test. In a libel for forfeiture of alleged adulterated vinegar, it was held that the government was not limited to the standards mentioned in the Agricultural Department bulletin No. 65 and Circular 19, nor to methods of analysis adopted under regulation No. 4, but might make use of any accurate test. U. S. r. One Hundred Barrels Vinegar, (1911) 188 Fed. 471.

Question for jury. In Shawnee Milling Co. r. Temple, (1910) 179 Fed. 517, it was held that whether flour, bleached by the use of nitrogen peroxide under the Andrews patent, or pursuant to the Alsop process, was flour so treated that inferiority is concealed, or containing added poisonous ingredients which may render it injurious to health, in violation of the pure food law, was a question of fact for determination by a jury, or by the court if a jury is waived.

to the package, but does not include an advertising circular inclosed with an article inside the carton in which it is offered for sale. U. S. r. American Druggists' Syndicate, (1911) 186 Fed. 387.

Words given ordinary meaning.—The names intended by the pure food law to be used on brands or labels are names readily understood and conveying to the general public definite and familiar ideas as to the character or quality of the article branded, even though such names may be inaccurate in the view of a chemist, or physicist, or an expert in some particular industrial art. (1908) 26 Op. Atty. Gen. 474.

Neutral spirits. For the purposes of the pure food law, neutral spirit, or ethyl alcohol, if absolutely pure, would be not only like, but identical, whether it were derived from fruit, from cereals, from sugar cane, or from any other of the many substances which can furnish alcohol. (1907) 26 Op. Atty.-Gen. 216.

Like substances. - Ethyl alcohol cannot, for the purposes of the pure food law, be considered to be a "like substance" to whiskey. The proper definition of the word "whiskey," for this purpose, is a question of law, and the term is to be given its ordinary significance as a word of everyday speech, and should not be understood in any commercial or scientific sense. (1907) 26 Op. Atty. Gen. 262.

Misleading statements as to curative effects. False and misleading statements in the labels on a proprietary medicine as to its curative or remedial effects, but which do

not import any statement concerning identity, are not "misbranding," within the meaning of section 8. U. S. v. Johnson, (1911) 221 U. S. 488, 31 S. Ct. 627, 55 U. S. (L. ed.) 823; U. S. v. American Druggists' Syndicate, (1911) 186 Fed. 387.

Must be misbranded at time of seizure. A drug is not adulterated or misbranded so as to be subject to condemnation unless adulterated or misbranded at the time of seizure, and hence, where asafoetida below the prescribed test and misbranded was received in interstate commerce and tested and correctly branded before seizure, it was not subject to forfeiture. U. S. v. Five Boxes Asafoetida, (1910) 181 Fed. 561.

The word "label," as used in this Act, which requires packages of drugs shipped in interstate commerce to bear a statement on the label of the quantity or proportion of any alcohol, etc., means a descriptive paper affixed to the package, which must include the statement of how much alcohol, etc., is contained in the package. U. S. v. Sixty-Five Casks Liquid Extracts, (1909) 170 Fed. 449, affirmed (1910) 175 Fed. 1022, 99 C. C. A. 667.

Necessity for labels. This Act not only requires that drugs shipped in interstate commerce and labeled, shall not be misbranded, but also requires that they shall be labeled with labels conforming to its requirements. U. S. v. Sixty-Five Casks Liquid Extracts, (1909) 170 Fed. 449, affirmed (1910) 175 Fed. 1022, 99 C. C. A. 667.

Derivative. The word "derivative " in this subsection should be understood in its chemical sense. (1909) 27 Op. Atty.-Gen.

143.

Acetphenetidine is to be considered a "derivative" of acetanilide, within the meaning of subsection 2 of section 8, if it is so related to the latter substance that it would be rightly regarded by recognized authorities in chemistry as obtained from the latter "by actual or theoretical substitution," and it is not indispensable that it should be actually produced therefrom as a matter of fact. (1909) 27 Op. Atty.-Gen. 143.

"Blend." - The evident intent of the statute was to confine the use of the word "blend" to one kind of mixture and to forbid its use for another; and since, as to whiskey, such mixture must be either composed of two different kinds of whiskey, or of whiskey with one other substance generally mixed with it, namely, ethyl alcohol, it is clear that Congress intended to deny the designation" blend " to a mixture of whiskey and ethyl alcohol. (1907) 26 Op. Atty.-Gen. 262.

In what may be termed a "blend" of, or "blended," wines or whiskeys, the two articles mixed must be capable of accurate and sufficient description by a single generic term; they must be substances known by the same name and sufficiently distinctive to afford reasonable warning to purchasers. (1907) 26 Op. Atty. Gen. 216.

Where syrup consisting of refined cane sugar flavored with an extract of maple wood was sold under a lable describing it as

Blend of vinegar and cider. - Vinegar, which was in fact distilled vinegar to which a small quantity of pure boiled apple cider had been added for coloring, which was labeled as Saratoga Brand vinegar, a blend of pure boiled apple cider and distilled vinegar," was held to be misbranded as misleading the public to believe that it was composed of pure boiled apple cider vinegar and distilled vinegar. U. S. v. Ten Barrels Vinegar, (1911) 186 Fed. 399.

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Compounds. When the words compound or "compounded' are used in this Act, it is ordinarily necessary that two substances at least should be mentioned as entering into the combination described, as, for instance, "sherry compounded with port" or "port compounded with sherry," or compounded port and sherry." It is not, however, universally true that two substances must follow " compound" or compounded." although it is true that only one substantive can appropriately follow "blend" or "blended." A combination of whiskey with ethyl alcohol, supposing, of course, that there is enough whiskey in it to make it a real compound and not a mere semblance of one, may be fairly called " whiskey," provided the name is accompanied by the word compound or "compounded," and a statement of the presence of another spirit is included in substance in the title; it cannot, however, properly be styled "blended whiskey." (1907) 26 Op. Atty.-Gen. 216.

Compounds known as articles of food can be sold under their own distinctive name so long as no deleterious matter is put into the product, and the label states where it is manufactured, and it is not an imitation sold under the distinctive name of another article. U. S. v. One Car Load Corno Horse Feed, (1911) 188 Fed. 453.

"Compound" and "blend" distinguished. The words compound" or "blend" are substantially synonymous, in ordinary speech, when applied to mixtures or liquids; but the pure food law establishes a distinction of its own between them, based upon the character of the ingredients entering into the mixture. Thus the intent of this Act is that the term "blended sherry," for instance, or "blend of sherries," shall designate a mixture of two or more kinds of sherry; while the titles "compound of port and sherry," or "com

pounded port and sherry," would appropriately designate a mixture of two substances, unlike in the view of the law, namely, two distinct and different kinds of wine - "unlike" in the sense that diamonds and coal are unlike. So a mixture of two or more different whiskeys, whether their differences arise from the character of the substances from which they are distilled or from the method of distillation used, or even from their several ages and the environment in which they are kept subsequently to distillation,

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a

would be appropriately termed a "blend of whiskey," or blended whiskey," or blended whiskeys," any one of which would be correct, provided each article entering into the combination, standing alone, could be properly designated as whiskey." While mixture of a spirit properly designated whiskey "with another spirit which, standing alone, could not be properly designated as "whiskey," such as ethyl alcohol, must be labeled or branded as a compound or as "compounded." (1907) 26 Op. Atty.-Gen.

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Maple syrup. In U. S. v. Scanlon, (1908) 180 Fed. 485, it appeared that the defendant manufactured syrup from cane sugar, flavored to represent maple syrup by the introduction of an extract from maple wood after it had been chopped down. The syrup was put up in bottles labeled "Western Reserve Ohio Blended Maple Syrup," the words "Ohio" and " Maple Syrup being in red, and be

tween them the word "Blended," and then below that, in smaller type, the statement, "This syrup is made from the sugar maple tree and cane sugar." It was held that the label was misleading, in that purchasers would ordinarily understand that the article contained in part maple syrup made from the boiled-down sap drawn from live maple trees, and that defendant was therefore guilty of misbranding. The court said: "It is not a question of chemistry in this case, any more than it is with butter. It is a question of what is the popularly recognized definition of maple syrup; and that undoubtedly is, and we do not need the chemists to testify to it, that it is the syrup produced from boiling down the sap that flows in the spring of the year from the live maple tree. It has a certain consistency, and of course a certain specific gravity, which a chemist can tell us about; but those persons who have used it know in a general way when it has a proper consistency and a proper specific gravity, as they certainly do whether it has the proper flavor."

Canned fruit. In U. S. v. 100 Cases Tepee Apples, (1908) 179 Fed. 985, it appeared that the claimants operated a canning factory in Benton Harbor, Mich., where fruits grown in Michigan, as well as in other states, were canned and prepared for sale. The claimants canned certain tepee" apples and blackberries grown in Arkansas, sold under a label on which was printed: "Tepee Apples [or Blackberries, as the case might be]. Packed by C. H. Godfrey & Son, Benton Harbor and Watervliet, Michigan." There was evidence that Michigan apples and blackberries were better than those grown in Arkansas. It was held that the labels indicated that the fruit was grown in Michigan, and that claimants were therefore guilty of misbranding.

Honey and corn syrup. A food product labeled, "Compound: Pure Comb and Strained Honey and Corn Syrup," is not "misbranded" within the meaning of this section merely because the percentage of corn syrup in the compound largely exceeds that of honey. U. S. v. Boeckmann, (1910) 176 Fed. 382.

Compound of molasses and corn syrup.An article of food put up and sold in cases bearing principal labels describing the contents as a particular brand of molasses, but plainly stating in three separate places that the product is a compound of molasses and corn syrup, and also giving all the other information required by this Act and the regulations thereunder, and such article being in fact a compound of molasses and commercial glucose, is not adulterated or misbranded, within the meaning of this Act; it being shown that it contains nothing deleterious to health, and that under the rulings of the department it is permissible to describe commercial glucose on labels or brands as made from corn syrup. U. S. r. Seven Hundred and Seventy-Nine Cases Molasses, (C. C. A. 1909) 174 Fed. 325.

Blended syrup. In U. S. v. Sixty-Eight Cases Syrup, (1909) 172 Fed. 781, it ap peared that certain cases containing syrup seized by the United States were branded and labeled "Western Reserve Ohio Blended Maple Syrup, guaranteed absolutely pure. shipped by Western Reserve Syrup Company, Cleveland, Ohio." The bottles were labeled and branded "Western Reserve Ohio Blended Syrup, Western Reserve Syrup Company. Cleveland, Ohio, Blenders of Fancy Maple Syrup and Maple Sugar." It was held that. construing all the words of the bottle labels together, the same meaning was intended as in the labels on the cases, namely, that the bottles and the boxes contained blended maple syrup.

Salad oil prima facie means olive oil, and in the absence of evidence that the term has recently acquired a more general meaning to include other oils, its use without further explanation on packages of cotton seed oil shipped in interstate commerce constitutes a misbranding. Brina v. U. S., (1910) 179 Fed. 373.

Spring water. - Ordinary Croton water drawn from the pipes in New York city, filtered and bottled after the addition of small quantities of mineral salts and carbonic acid gas, is not "spring water," as the term is generally understood, and the labeling of the bottles as spring water constitutes a misbranding within the meaning of the Food and Drugs Act. U. S. v. Morgan, (1910) 181 Fed. 587.

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"Oat feed." Since the term oat feed," in its ordinary acceptation, does not mean the whole oat grain, either crushed or ground, but instead means that part of the grain which remains after the miller subtracts the portions useful for human food, consisting of nubbins, middlings, hulls, and oat dust, a compound substance sold in packages under the name 66 Corno Horse and Mule Feed," and described in the package as a "mixture of ground alfalfa, oats, corn, alfalfa, oat and hominy feeds," with the name of the manufacturer and the place of manufacture, followed by an analysis of its contents, was held not to be misbranded in violation of this section because it contained an excess of oat hulls in compound and not the whole ground oats. U. S. v. One Car Load Corno Horse Feed, (1911) 188 Fed. 453.